The existence of a joint family does not suffice to declare property as joint family property without proof of surplus income used for acquisition.

JUDGMENT :

C. KUMARAPPAN, J.

1. The defendants are the appellants. The suit property originally belonged to one Kuppusamy Gounder. He got three sons by name Sadhasiva Gounder, Mottaiya Gounder and Nallara Gounder. The suit has been filed by one Mottaiya Gounder against his brother Nallara Gounder in O.S.No.379 of 1982. Similarly the defendants in O.S.No.379 of 1982 have also filed another suit in O.S.No.199 of 1982 against Mottaiya Gounder namely, the plaintiff in O.S.No.379 of 1982. Since both the suits were in respect of the same property and between the same parties, both the suits were tried together and the suit filed by Mottaiya Gounder was dismissed. However, the suit filed by Nallara Gounder was allowed by common judgement dated 30.06.1987. Against which, two separate appeals have been filed in A.S.Nos.3 of 2007 and 32 of 2006, wherein, the common judgment has been passed on 15.03.2008 by allowing the appeal. The present appeals have been filed against the said common judgment. Therefore, both the appeals are taken up together for disposal.

2. For the sake of convenience, the parties will be referred according to their litigative status in O.S.No.379 of 1982.

3. The brief facts, which give rise to the instant second appeals are as follows:

The plaintiff and the first defendant are brothers. The second defendant is wife of the first defendant and the defendants 3 and 4 are the subsequent purchasers who purchased the property from the first defendant. According to the plaintiff, the suit property was the joint family property and that, during 1959 there was a partition in the family. Since the plaintiff was minor then while dividing the family property, after allotting separate share to Sadhasiva Gounder, the plaintiff and the first defendant were jointly allotted share. The same has been maintained by the first defendant on his behalf and on behalf of plaintiff and the said property has been referred as 'A' schedule property.

4. It is also the submission of the plaintiff that, out of the income derived from the joint family property, the first defendant has purchased the 'B' schedule property. Therefore, 'B' schedule property also has to be construed as a joint family property. Since 1981, there was no cordiality between the plaintiff's wife and the first defendant's wife, therefore, the plaintiff has come forward with the suit for partition and separate possession.

5. It is also the contention of the plaintiff that, the first defendant has executed the settlement deed in favour of his wife/second defendant, and also sold certain property to the defendants 3 and 4. According to the plaintiff, since the properties are the joint family property, such subsequent transfer made by the first defendant will not affect the plaintiff's right to have a share in the suit property. Hence, he prayed to decree the suit.

6. The said suit was resisted by the first defendant contending that there was no partition during 1959 and a partition had happened only during 1962. The suit 'A' schedule property was allotted as his separate share from the joint family property, and 'B' schedule property was purchased by him from the borrowals from his father-in-law and also from outside sources such the property referred to in 'B' schedule property is also his absolute property. Therefore, it is the submission of the defendants that, he has got every right to alienate the property. The defendants further submitted that they also borrowed a sum of Rs.35,000/- from various parties so as to purchase the 'B' schedule property. Therefore, it is the defendants submission that the plai